Insurance law aspects of autonomously driven vehicles

For motor vehicle insurers in particular, the question will arise as to how insurance cover for partially or fully autonomously driven motor vehicles for private use shall be structured in the future. The liability of the owner through strict liability according to Section 7 (1) Road Traffic Act (StVG) is currently clearly regulated, and this regulation is found throughout the EU in all Member States. The question is under which conditions and to what extent the owner’s motor vehicle insurer can take recourse against the motor vehicle manufacturer, if it is not the owner’s behaviour but the technology of the autonomously driven motor vehicle that has caused the damage. This question also affects the product liability insurance cover of the motor vehicle manufacturer. In the context of the amendment to the Road Traffic Act in 2017, the German legislator concisely stated “that the liability insurance of the owner and the insurance of the manufacturer shall clarify who, as a result, has to bear the costs of the accident”. The current draft of the “Act to Amend the Road Traffic Act and the Compulsory Insurance Act – Act on Autonomous Driving” of 9 March 2021 (BT-Drs. 19/27439) regulates the fourth of the five motor vehicle automation levels:  According to this, the vehicle can move without a driver in certain operating areas. Instead of a driver, a “person for technical supervision” is to be appointed according to Section 1d (3) StVG-E, who can deactivate the vehicle during operation according to Section 1e (2) no. 8 StVG-E and release driving manoeuvres according to Section 1e (2) no. 4, para. 3 StVG-E in order to bring about the so-called minimum risk state (Section 1d (4) StVG-E). According to the amendment to Section 1 Compulsory Insurance Law (PflVG) provided for in the draft law, the owner of a motor vehicle with autonomous driving function has the obligation to “take out and maintain liability insurance in accordance with sentence 1 also for a person for technical supervision”. Furthermore, the draft law provides for doubled maximum liability amounts within the scope of owner’s liability for all autonomous vehicles. The draft law does not yet provide for regulations on the liability regime with regard to the manufacturer of the vehicle. It is also not yet foreseeable when the regulation of the fifth of the five vehicle automation stages, namely the fully autonomous vehicle, can be expected.

For reasons of harmonised protection of accident victims under European law (see Sixth Motor Insurance Directive 2009/103/EC of 16 September 2009), it seems reasonable that the motor vehicle liability insurer should continue to be the first point of contact for the injured party, even in the case of fully self-driven vehicles, and should settle the claim directly. The central object of European harmonisation is the direct claim of the injured party against the motor vehicle liability insurer of the owner of the motor vehicle who caused the accident within the EU. Accordingly, the injured party has a strict liability claim against the owner under Section 7 (1) StVG as well as a direct claim against the owner’s motor vehicle insurer under Section 115 (1) sentence 1 Insurance Contract Act (VVG), and, in the case of technical failure, a claim against the manufacturer under product liability pursuant to Section 1 Product Liability Act (ProdHaftG). Section 115 (1) sentence 4 VVG already clearly stipulates that the owner and the insurer are jointly and severally liable; however, the claim against the manufacturer under ProdHaftG has not yet been covered by law with regard to joint and several liability.

If the injured party asserts his/her claim under Section 7 (1) StVG against the owner, the motor vehicle liability insurer indemnifies him/her against the injured party pursuant to Section 100 VVG, and the injured party’s claim against the manufacturer under product liability or tort law should pass to the owner pursuant to Section 426 (2) (1) Civil Code (BGB), and then to the motor vehicle liability insurer pursuant to Section 86 (1) (1) VVG. The injured party’s claim against the manufacturer based on product liability or tort law should pass to the owner in accordance with Section 426 (2) (1) BGB, and then to the motor vehicle liability insurer in accordance with Section 86 (1) (1) VVG, who will indemnify the manufacturer and, if necessary, the injured party (with assignment of the indemnification claim from Section 100 VVG in conjunction with Para. 5.1 GTCLI) the manufacturer’s product liability insurer. Questions of evidence will then regularly arise. The German legislator also recognises this in connection with the aforementioned draft law. In its statement of 1 April 2021 (BT-Drs. 19/28178), the Federal Council recommends that further considerations in connection with autonomous driving be taken into account in the negotiations at European level on the revision of the Product Liability Directive and on the creation of an EU legal framework for artificial intelligence:  In the case of autonomous vehicles, the causality of a product defect is always conceivable, the existence of which and the causality of the accident are very difficult to fully prove within the scope of asserting a product liability claim against the manufacturer due to the special features of the technology (complexity, “opacity” and autonomy). It should be kept in mind that the legal situation with regard to evidence in the context of product liability not only plays a role for individual injured owners, but also for motor vehicle liability insurers who have paid insurance benefits in the external relationship and want to assert a possibly subrogated product liability claim of the injured party by way of recourse. Clarifications and standardisations in this area could also further balance the distribution of risks and burdens in the relationship between insurers and manufacturers and adapt it to the special features of the complex new technology – always leaving sufficient possibilities for exculpation of the manufacturer. According to the Federal Council, targeted adjustments to the law of evidence, such as a presumption of product defect and causation, for example in the case of “single-vehicle accidents” without the involvement of another road user, could be considered as examples.

The Bundestag expressly takes note of the proposal, but at the same time points out that the current legislative initiative actually focuses on shuttle vehicles (not operated by private persons). Thus, the clarifications in product liability law rightly recommended by the Federal Council to facilitate the recourse of manufacturers of autonomously driven vehicles by motor vehicle liability insurers are not to be expected in the near future and will not become part of the current Act on Autonomous Driving which will most likely be passed in June 2021.